Regulation containing rules establishing the experience and integrity requirements for the directors, members of the board of auditors and general managers of Italian investment firms, asset management companies and SICAVs (Adopted by the Minister of the Treasury, the Budget and Economic Planning with Decree 468/1998)(1)
Article 1
(Experience and integrity requirements for the members of the governing bodies of
Italian investment firms, asset management companies and Sicavs)
1. The directors and the members of the board of auditors of Italian investment firms, asset management companies and Sicavs must be selected on the basis of criteria of professionalism and competence among persons who have acquired a total of at least three years' experience in:
a) serving as directors, members of the board of auditors or senior managers of firms;
b) performing professional activities having a bearing on the credit, financial, securities or insurance sector or in any case functionally related to the activity of the investment firm, asset management company or SICAV;
c) university teaching of legal or economic subjects;
d) administrative or managerial functions in public entities or government departments having a bearing on the credit, financial, securities or insurance sector or in public entities or government departments not having a bearing on such sectors provided the functions involved the management of resources of an economic or financial nature.
2. The chairman of the board of directors must be selected on the basis of criteria of professionalism and competence among persons who have acquired a total of at least five years' experience in performing the activities or functions referred to in paragraph 1.
3. The managing director and the general manager must have specific expertise in credit, financial, securities or insurance matters acquired through experience gained in positions of sufficient responsibility for a period of not less than five years. Analogous requirements apply to persons holding positions involving the performance of functions equivalent to those of general manager.
Article 2(2)
(Grounds for ineligibility)
1. Persons who in at least the two financial years preceding the adoption of the relevant decision were members of the governing bodies of firms involved in bankruptcy proceedings, compulsory administrative liquidation or equivalent procedures may not be directors, members of the board of auditors or general managers of Italian investment firms, asset management companies or Sicavs.
Fractions of the latest financial year exceeding six months shall count as a full year.
2. Paragraph 1 shall also apply to persons who:
a) were members of the governing bodies of firms in the credit, financial, securities or insurance sector placed under special administration
b) in the profession of stockbroker failed to fulfill the obligations prescribed by law or are excluded from trading on a regulated market.
3. The prohibition referred to in paragraphs 1 and 2 shall last for three years from the date of the adoption of the relevant decision. The period shall be reduced to one year if the decision was adopted at the request of the entrepreneur or of the board of directors of the firm.]
Article 3
(Integrity requirements)
1. The positions, however named, of director, member of the board of auditors or general manager in Italian investment firms, asset management companies and SICAVs may not be held by persons who:
a) are in one the situations of ineligibility or disqualification referred to in Article 2382 of the Civil Code;
b) have been the subject of precautionary measures imposed by the judicial authorities under Law 1423/1956 or Law 575/1965, as amended, without prejudice to the effects of rehabilitation;
c) have been condemned in an unappealable judgement, without prejudice to the effects of rehabilitation, and sentenced to:
1) a period of imprisonment for one of the offences provided for in the legislation on banking, financial, securities and insurance business or in the legislation on securities markets and securities or payment instruments;
2) a period of imprisonment for one of the offences provided for in Title XI of Book V of the Civil Code or Royal Decree 267/1942;
3) a period of imprisonment of not less than one year for a crime against the public administration, the public faith, property, the public order, the public economy or for a tax offence;
4) a period of imprisonment of not less than two years for any offence committed with criminal intent.
2. The positions, however named, of director, member of the board of auditors or general manager in Italian investment firms, asset management companies and SICAVs may not be held by persons who have been sentenced at the request of the parties to one of the punishments referred to in paragraph 1c), except in the case of the extinction of the crime. The punishments referred to in paragraph
1c), points 1) and 2), shall not count if the period is less than one year.
3. With reference to cases governed entirely or partly by foreign law, the absence of the situations referred to in paragraphs 1 and 2 shall be verified on the basis of an evaluation of the substantial equivalence of the rules carried out by Consob for investment firms and by the Bank of Italy for asset management companies and SICAVs.
Art. 4
(Disqualification from office)
1. The following shall be grounds for the suspension from office of directors, members of the board of auditors and general managers:
a) an appealable condemnation for one of the offences referred to in Article 3.1c);
b) the imposition at the request of the parties of one of the sentences referred to in Article 3.2 where the judgement is appealable;
c) the provisional application of one of the measures provided for in Article 10.3 of Law 575/1965, as replaced by Article 3 of Law 55/1990, as amended;
d) the application of a precautionary measure of a personal nature.
2. The board of directors shall put the revocation of the appointments of the persons it has suspended on the agenda of the first shareholders' meeting following the occurrence of one of the causes of suspension referred to in paragraph 1. The suspension of a general manager appointed by the directors may not last for more than forty-five days, at the end of which the board of directors
must decide whether to proceed with the revocation of the appointment, except in the cases referred to in paragraphs 1c) and 1d). A person whose appointment is not revoked shall be reinstated with full powers. In the cases referred to in paragraphs 1c) and 1d), the suspension shall always apply for the full duration of the measures referred to therein.
Art. 5
(Transitional provisions)
1. For members of governing bodies holding office at the date of entry into force of this decree, failure to satisfy the requirements referred to in Articles 2, 3 and 4 that were not present in the earlier legislation shall not count for the remaining part of their mandates if the failure existed before such date.
2. For members of the governing bodies of asset management companies and SICAVs holding office at the date of entry into force of this decree, failure to satisfy the requirements referred to in Articles 2, 3 and 4 that were not present in the earlier legislation shall not count for the remaining part of their mandates if the failure existed before such date.
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footnotes:
1. The decree and the attached regulation were published in Gazzetta Ufficiale no. 7 of 11 January 1999.
2. The provisions of Article 2 were annulled by Regional Administrative Tribunal decision no. 2907 of 7.4.2000.
